[2012] KEHC 751 (KLR)
The court found that although the filing of two appeals by the appellant could lead to unnecessary proliferation and delay of proceedings, outright dismissal of the memorandum of appeal was not the appropriate remedy. Instead, since the lower court proceedings had been concluded, the court directed that the instant...
Source-derived case information.
- Citation
- [2012] KEHC 751 (KLR)
- Parties
- Appellant: Walter Odhiambo Nyangori; Appellant: Willy Tanui; Respondent: McDonald Kandoro Kai
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 37 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Dismissal of Appeal
- Outcome
- Notice of Motion for dismissal of appeal declined; appeal to be consolidated with HCCA No. 3 of 2012.
- Judges
- CW Meoli
- Legal Topics
- Appeal Consolidation, Dismissal of Appeal, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Odhiambo Nyangori
Appellant
Willy Tanui
Appellant
McDonald Kandoro Kai
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Dismissal of Appeal
Legal Issues
- 1 Whether the memorandum of appeal should be dismissed as sought in the respondent's Notice of Motion.
- 2 Whether the instant appeal should be consolidated with HCCA No. 3 of 2012.
Ratio Decidendi
The court found that although the filing of two appeals by the appellant could lead to unnecessary proliferation and delay of proceedings, outright dismissal of the memorandum of appeal was not the appropriate remedy. Instead, since the lower court proceedings had been concluded, the court directed that the instant appeal be consolidated and canvassed as a ground in the subsequent appeal (HCCA No. 3 of 2012). This approach would ensure that all issues are addressed efficiently without prejudicing any party, and would avoid unnecessary duplication of judicial effort.
Court Disposition
Notice of Motion for dismissal of appeal declined; appeal to be consolidated with HCCA No. 3 of 2012.
Orders
- The appeal herein is to be consolidated as a ground to be canvassed in HCCA No. 3 of 2012.
- Costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
High Court at Malindi
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WALTER ODHIAMBO NYANGORI
WILLY TANUI …...................................... APPELLANTS
VERSUS
MCDONALD KANDORO KAI ….............RESPONDENT
R U L I N G
1. The respondent's Notice of Motion dated 19th March, 2012 was heard by way of written submissions. I have now looked at the respective affidavits and submissions by the parties in relation thereto.
It is apparent that the appellant has filed two appeals, namely the instant appeal (regarding an order made in the Lower Court) and HCCA No. 3 of 2012 in respect of the judgment in Kilifi SRMCC No.132 of 2010.
2. While these actions only serve to proliferate and delay proceedings, I do not think that the solution lies in “dismissing” the memorandum of appeal herein, as proposed in the Notice of Motion. Nowthat the proceedings in the Lower Court have been determined in a decision, I direct that the appeal herein be consolidated as a ground to be canvassed in the latest Appeal No. 3 of 2012. These are the orders of the Court.
Costs in the cause.
Delivered and signed at Malindi this 5th December, 2012 in the presence of Mr. Matata holding brief for Mr. Obura for defendants.
Plaintiff absent.
C. W. Meoli
JUDGE